Are Free Wills any good? A Warning on ‘Free’ Wills

After seeing a story on Seven News on ‘Free Wills’, I felt compelled to share my views on DIY online Wills.

It began with a story many lawyers know too well: A woman’s de facto partner had died without a Will following a short battle with cancer. While coming to terms with losing her partner, the grieving woman found herself in a year-long bitter legal battle with her late partner’s four adult children over his estate.

In the end, she walked away with $63,000 of the $240,000 estate. $25,000 went to legal fees, and $10,000 went to a barrister.

Why is this a story many lawyers know too well? Because this can commonly happen when someone dies without a properly drafted Will.

If you or someone you know is considering a “free” or cheap DIY online or Post Office Will, please make sure this important decision is a well-informed one.

Some important questions to consider or to ask the Will provider:

• What do these online companies mean when they say they are “reviewing” the Will? It is safe to assume they are only reviewing the Will to ensure it meets the legal formalities of a Will, rather than providing any Estate Planning advice?

• When the online Will companies’ websites states “legal experts” review the Will, what exactly does this mean? Are they an experienced lawyer, a lawyer who is an Accredited Specialist, or a law graduate with minimal experience in drafting Wills? Ask if these “legal experts” have an Australian Legal Practising Certificate.

• After you sign your Will, where will the original Will be stored? Who stores it? Will you have to pay ongoing fees for storage? Few people realise if the original Will is lost, there will be complications and further expense for your Estate to have Probate granted by the Supreme Court.

• Does the online Will company offer Power of Attorney appointments if you lose capacity and are unable to manage your affairs while you are alive? If not, why not? If so, what advice do they provide?

When you see a qualified lawyer to properly draft your Will and assist with your Estate Planning, you are receiving advice on:

·       Who will have guardianship of your minor children after you die.

·       Who are the people eligible to challenge your Will and how to minimise the chances of them challenging your Will.

·       Situations you may not have considered, such as a beneficiary predeceasing you.

·       Strategies for asset protection for your beneficiaries’ inheritance in your Will.

·       Strategies for potentially minimising your beneficiaries’ tax on their inheritance.

·       Strategies to manage the inheritance where a beneficiary in your Will has an addiction (e.g. drugs, alcohol or gambling) and cannot manage their own affairs.

·       International assets: advising on how to structure your Will/s so your Estate can be efficiently managed.

·       Assets you may not be able to gift. For example, if you own real estate as a joint proprietor or have assets in a trust or company, these assets cannot be gifted in your Will.

·       Appointing Executors to manage your affairs after you die– who and how many to appoint, and perhaps more importantly who not to appoint.

·       What happens to your Superannuation after you die.

·       How your affairs will be managed if you lose capacity while you are alive.

Only lawyers are qualified and have professional indemnity insurance to give advice on the above issues. A lawyer drafting a Will can provide you with expert legal advice, ensuring you have a properly drafted Will.

Some of these online Will companies may offer you an optional extra to pay for further advice. Remember they are likely charging for this add-on at the rates of a lawyer, so you would end up having to do all all the leg work yourself, while also having to fork out extra money to receive advice.

Whether it is an online Will, post office Will, or a Will drafted by an experienced lawyer, my advice is to get it done properly with a qualified lawyer from the start.

When you have a properly drafted Will, it is likely to reduce the chances of your Will causing disputes between family members or having difficulty with Probate being granted by the Supreme Court.

Issues created by a poorly drafted Will can cost your Estate tens of thousands of dollars in legal fees after your death.

DISCLAIMER: This article is provided for general information purposes only. It does not constitute specific legal advice or opinion. Although our aim is to provide you with as accurate information as possible, you should not act or rely upon the information in this article without seeking the advice of an experienced lawyer who specialises in the particular area of law relevant to your inquiry. Please do not to hesitate to contact Murnane Legal to make further inquiries or to make an appointment to discuss the specifics of your situation.